Bound by Constitutional Text?

[crgreen at olemiss.edu]

"If the sense ACTUALLY existed (was expressed), there would be no 
ambiguity in the first place."

That doesn't seem right.  Ambiguity means that the same chunk of 
language can express different things in different contexts.  But in a 
particular context, it can still express one thing.

"[T]he 'historically expressed sense' (your view) must be compared to 
other senses that language itself permits -- and that, if spoken, 
would themselves be cognizable to the framing generation."

Once we know what sense was expressed by the constitutional text in 
its actual context, I don't see why (as a constitutional matter) we 
should care at all what meaning that chunk of text would express in 
other contexts.

"The job of the judge, where the mind is not 'pinned' by words, is to 
speak the language of the framers (back to both them and to future 
generations) using a sense that can be understood by all in the 
language culture."

I'm not sure why this is the case.  The interpretive job of the judge 
isn't to speak the language of the framers, but to understand it.  And 
the framers are certainly not the audience for our present 
interpretive work.

>
> --- Original message ---
> Subject: Re: Bound by Constitutional Text?
> From: Sean Wilson <whoooo26505 at yahoo.com>
> To: <conlawprof at lists.ucla.edu>, <metalaw at freelists.org>, 
> <wittrsamr at freelists.org>
> Date: Wednesday, 09/22/2010 4:54 PM
>
>
>
>
>
> Chris:
>
> Here is the problem.
>
> 1. When a person plods through a legal ambiguity, they are not picking 
> "the true sense that exists;" they are picking the one that makes BEST 
> SENSE for the issue at hand. If the sense ACTUALLY existed (was 
> expressed), there would be no ambiguity in the first place. The mere 
> presence of ambiguity means that law is not binding (behaviorally) 
> with respect to that issue. Therefore, what originalists really do is 
> re-write sentences to accord with how the framers would have written 
> them if they had a second chance at drafting the issue. That is, what 
> they do is promote something that never passed the democratic ritual 
> into the status of "law." Therefore, the "historically-expressed 
> sense" (as you put it) is treated as having been itself codified -- 
> when, in fact, it never was. Neither positivism in general, nor 
> Scalia's view of how legislatures "speak" (in particular), would seem 
> to support such a view.    2. Keep in mind that I'm not saying that 
> meaning-contests do not erupt inside legalistic codes (UCC and FSG). 
> What I am saying is two things: (a) that meaning-contests are reduced 
> by rigidity in language (by spelling things out); and (b) that 
> positivistic culture creates codes and manuals for this explicit 
> purpose. There is a hidden premise (enthymeme) here for positivism is 
> this: law is only what minds are pinned to (regimented) in language. 
> Anything else is an argument for what law SHOULD BE -- which is the 
> very question that the judge referees.
>
> If originalists could only see this (1 and 2), they would come to see 
> that they are not defending "law;" they are defending a view for what 
> law SHOULD BE. And as such, the "historically expressed sense" (your 
> view) must be compared to other senses that language itself permits -- 
> and that, if spoken, would themselves be cognizable to the framing 
> generation. The job of the judge, where the mind is not "pinned" by 
> words, is to speak the language of the framers (back to both them and 
> to future generations) using a sense that can be understood by all in 
> the language culture. The judge's job, therefore, is to select the 
> best family resemblance in the language game -- to give the 
> Constitution good grammar (as it were).
>
> DEFINITIONS
> 1. If the law sets forth a definition-section, then what you say here 
> may be more applicable. Our constitution doesn't do this. So we are 
> not presented with a situation where the law attempts to set forth a 
> stipulation (or criteria) for the use of a word. That's why, 
> incidentally, codes and manuals usually do such things -- so that 
> there are fewer issues as to what sense is actually enacted.
>
> Here's what the bottom line is: legal culture in America has become 
> linguistically pedantic (law is only what words point to). It is not 
> possible to entertain originalism without changing the assumptions of 
> this culture with respect to what codification is or does. This may be 
> more of an issue than the language assumptions originalists make. The 
> real money may revolve around one's philosophy of codification. (One's 
> philosophy of what the democratic ritual really does).
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
>  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
> SSRN papers: http://ssrn.com/author=596860
> New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
>
>
>
> From: Christopher Green <crgreen at olemiss.edu>
> To: conlawprof at lists.ucla.edu; metalaw at freelists.org; 
> wittrsamr at freelists.org
> Sent: Wed, September 22, 2010 2:14:32 PM
> Subject: RE: Bound by Constitutional Text?
>
>
> "In positivistic legal regimes, for law to have sense 1, 2 or 3, it 
> must explicitly enact (describe) those senses. If it doesn't, any 
> sense of the idea could be used and be obedient to 'virtue.' Keep in 
> mind that I don't say this a priori. I say it because of the way legal 
> systems operate. This exact ethic is what caused the legalism in the 
> UCC or Federal Sentencing Guidelines to be created. The premise is 
> that law is only its language, and that, to avoid family resemblance 
> problems, the sense of the idea needs specified. If the sense is not 
> specified, the job of the judge is to pick the BEST SENSE, which may 
> or may not be the one drafters/approvers liked best when they codified 
> the naked words."
>
> These assertions don't seen right to me, and I haven't seen anything 
> like this in the UCC or sentencing-guidelines cases I've read.  When 
> words are ambiguous--i.e., express different senses in different 
> contexts--interpreters have to figure out which sense was expressed in 
> the actual context, not just pick the one they prefer on normative 
> grounds.  What case has ever said anything different?
>
> "As any good Wittgensteinian could surely attest, words do not have 
> essences; they have GRAMMAR."
>
> All I need is for words to have definitions, not essences.  I'm only 
> citing Plato to make the distinction between a definition and an 
> example clearer.
>
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
> Sent: Wednesday, September 22, 2010 12:55 PM
> To:conlawprof at lists.ucla.edu
> Cc: metalaw at freelists.org; wittrsamr at freelists.org
> Subject: Re: Bound by Constitutional Text?
>
>
>
> (reply to Chris Green, who has offered a point about language and law 
> that endorses definitions and essences.)
>
> Chris:
>
> There are two issues here as I see it. The first is one about 
> language; the other about law. I want to take the easy one first.
>
> LAW
> Let's imagine that the framers placed the following sentence in the 
> Constitution: "Republican Government requires Civic Virtue." And let's 
> assume that right-wingers win the presidential election in 2012. And 
> let's imagine that, in 2012, they contend that the President has the 
> inherent power to prorogue Congress, even though such a right is not 
> in the Constitution. The right-wingers believe this because the 
> country doesn't have a right to a Congress, absent sufficient civic 
> virtue. Further, the power to prorogue can be traced back to the 
> ancients, and so can the ideology of republicanism and virtue. And 
> let's assume that, for present purposes, there is no issue about what 
> "republican government" means (for the moment) or what "civic" is 
> doing in the constitutional sentence. Rather, the only issue is what 
> "virtue" means and whether Americans are devoid of it.
>
> Your contention reduces to this. If we can find a dominate sense of 
> the expression "virtue" either in the culture at large or in the 
> drafters/approvers in particular, that this sense is therefore 
> ordained in the law. My point is that it is not, by virtue of how 
> legal systems work.  To understand this, consider the following senses 
> of "virtue:"
>
> 1. Roman. "VEER-too." To show "virtue" in Rome, one had to show 
> "strong male bravery and soldiery." You had to be, in short, a 
> butt-kicker. Soldiers would be honored for displaying their virtue 
> (being a "he-man") in battle.
>
> 2. English. Control of the passions. Virtue is showing that your 
> obsessions and desires can be controlled.
>
> 3. Washington during the war. Virtue comes to mean sacrifice. Those 
> who show true virtue are those who will die for noble things. Jesus 
> had exemplary virtue.
>
> In positivistic legal regimes, for law to have sense 1, 2 or 3, it 
> must explicitly enact (describe) those senses. If it doesn't, any 
> sense of the idea could be used and be obedient to "virtue." Keep in 
> mind that I don't say this a priori. I say it because of the way legal 
> systems operate. This exact ethic is what caused the legalism in the 
> UCC or Federal Sentencing Guidelines to be created. The premise is 
> that law is only its language, and that, to avoid family resemblance 
> problems, the sense of the idea needs specified. If the sense is not 
> specified, the job of the judge is to pick the BEST SENSE, which may 
> or may not be the one drafters/approvers liked best when they codified 
> the naked words. This means that generations are free to select 
> examples of "virtue" since all that is codified is the idea. This is 
> consistent with Scalia's idea that lawmakers must say what they mean 
> (and mind-reading is not part of the judicial chore).   LANGUAGE
> The other issue here is whether "virtue" -- or your example, "pious" 
> -- has an "essence," which would allow a true definition to reveal it. 
> As any good Wittgensteinian could surely attest, words do not have 
> essences; they have GRAMMAR. This doesn't mean, of course, that words 
> are willy-nilly -- for all words surely have moorings of a sort.  But 
> what it means is that the moorings are of a cognitive phenomenon that 
> become manifested as family resemblance (unless the words are 
> Kripkean).
>
> Therefore, the specific answer to the question of "what makes all 
> things pious" (the issue below) is something inherently 
> ANTHROPOLOGICAL and COGNITIVE. Given what we know, it is a set of 
> things -- a, b, c, d, e, f -- which are combined and substituted for 
> any use. Some uses are {a, b, d, f}, some {a, b, c, d}, others {a, c, 
> e}. To really know this answer, one simply needs to see what humans 
> are doing with the idea in the language game. As Wittgenstein says, 
> "don't think, look!"
>
> (P.S. sent to metalaw and wittrs)
>
> Yours forever a Wittgensteinian,
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
>  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/)
> SSRN papers: http://ssrn.com/author=596860
> New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
>
> ----- Original Message ----
> From: Christopher Green <crgreen at olemiss.edu>
> To: conlawprof at lists.ucla.edu
> Cc: metalaw at freelists.org
> Sent: Tue, September 21, 2010 2:45:04 PM
> Subject: RE: Bound by Constitutional Text?
>
> "Here's what I want to say: the oath isn't a loyalty to a prior age or
> culture or set of minds. It is a loyalty only to things that can be 
> said to
> be in the document's language."
>
> Right.
>
> "And because the langue involves family resemblance, the things given 
> to us
> by forebears are only examples of that language. Other examples are
> possible."
>
> This doesn't seem right.  Sufficiently-foresighted founders might give 
> us
> definitions, rather than just examples.  See
> http://classics.mit.edu/Plato/euthyfro.html ("I did not ask you to 
> give me
> two or three examples of piety, but to explain the general idea which 
> makes
> all pious things to be pious. ... Tell me what is the nature of this 
> idea,
> and then I shall have a standard to which I may look, and by which I 
> may
> measure actions, whether yours or those of any one else, and then I 
> shall be
> able to say that such and such an action is pious, such another 
> impious.").
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
> Sent: Tuesday, September 21, 2010 1:30 PM
> To: conlawprof at lists.ucla.edu
> Cc: metalaw at freelists.org
> Subject: Re: Bound by Constitutional Text?
>
> ... just to be clear on this, what I mean is that the bits and pieces 
> of
> historical evidence that allow one to construct a "sense" of an 
> expression
> -- or to make the expression fixed upon some specific object -- are 
> not,
> themselves, ever blessed by the ritual. It's really the same argument 
> that
> Scalia makes about Congress and its intentions. If you cannot say what 
> you
> mean in the blessing ("the ayes have it"), you have, by definition, 
> left it
> for others to pick among the possible things that the general words 
> could be
> said to have said.
>
> Here's what I want to say: the oath isn't a loyalty to a prior age or
> culture or set of minds. It is a loyalty only to things that can be 
> said to
> be in the document's language. And because the langue involves family
> resemblance, the things given to us by forebears are only examples of 
> that
> language. Other examples are possible.
>
> And so, if you don't say exactly what you mean when passing law, you 
> can't
> claim that the things left out of the ritual are secretly hiding 
> there. They
> aren't, by virtue of how legalism works.
>
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
>  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ ) SSRN 
> papers:
> http://ssrn.com/author=596860 New Discussion Groups!
> http://ludwig.squarespace.com/discussionfora/
>
>
>
>

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